Constitutional evaluation of laws is tricky business. It stands in stark contrast to terming a law or rule as being desirable or undesirable, though it is possible that an undesirable law is also unconstitutional. Merely because a law is inconvenient or results in hardship to some, cannot be the same as saying that the law is constitutionally abhorrent. For that, the law or rule must necessarily surpass the prohibitions embedded in the Constitution itself, or in the case of statutory rules or regulations, go beyond the rule-making power. It is with this spectacle that one must view the Government’s attempt to regulate animal livestock markets.

Parliament enacted the Prevention of Cruelty to Animals Act, 1960, Section 38 whereof empowers the Central Government alone to make rules. The Government notified the Rules last month for constituting and regulating animal markets for transacting sale and purchase of animals without subjecting them to cruelty. Rule 22, which has attracted the most controversy, requires certain measures for ensuring that in animal markets, cattle are transacted for agricultural purposes only, and not for slaughter. The other provisions in these rules constitute Animal Market Committees and lay down several measures for preventing cruelty to animals. It is evident that the purpose of these rules is to free animal markets of transactions which would result in animals being treated cruelly, and the prohibition of cattle slaughter is incidental to that purpose.

The primary objection against these rules is that they violate the right of butchers to practise their trade and occupation freely [Article 19(1)(g)]. It is now an established position that even though Directive Principles are themselves not enforceable by courts, yet Fundamental Rights are to be read in such a manner that the Directive Principles do not remain mere empty declarations. One of the Gandhian principles embodied in Article 48 directs future Governments “to endeavour to…take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and the other milch and drought cattle”. In the same vein, Article 47 requires “…the State…to…endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health”, and liquor prohibition has consequently been upheld by treating liquor trade as res extra commercium [not only held by our Supreme Court in Khoday Distilleries v. State of Karnataka, (1995) 1 SCC 574, but also by the American Supreme Court more than a century ago in Crowley v. Christensen, (1890) 137 US 86].

The question of whether slaughter of milch cattle could be prohibited in its entirety, took nearly half a century to be settled. While in the fifties, the Supreme Court in Mohd. Hanif Qureshi v. State of Bihar [AIR 1958 SC 731] rejected the argument that religious freedom was hindered on account of such prohibition, although it did hold that the prohibition to slaughter even those animals ceasing to be capable of yielding milk or of breeding or working as draught animals, was unjustified as it run foul of the butcher’s right to freedom of trade and occupation under Article 19(1)(g). A larger seven-Judge Bench of the Supreme Court revisited this reasoning and overruling it, held in State of Gujarat v. Mirzapur Moti Kureshi [(2005) 8 SCC 534] that bovine animals did not become useless on their ceasing to be capable of yielding milk or of breeding or working as draught animals. Relying on Directive Principles to hold these restrictions as being reasonable and in public interest, thus saved by Article 19(6), the Court further held that economically, bovine animals can never be useless on account of the value and utility of their dung and urine. Finally, the Court struck a chord of compassion towards animals and reasoned that cruelty to any living creature must be curbed and desisted.

The contention based on the fundamental right to religion under Article 25 even in respect of cow protection laws has been categorically rejected throughout in all these judgments. It is thus specious to say that the 2017 Rules are violative of any fundamental rights.

Our Constitution envisages a distribution of powers that leans in favour of the Union – the most obvious evidence of this being that the Union has the residuary legislative power (Article 248 read with Entry 97, List I of Schedule VII). The Supreme Court has consistently afforded wide amplitude to this residuary entry, thus reaffirming the Centre-leaning legislative scheme [Union of India v. Harbhajan Singh Dhillon, (1971) 2 SCC 779].

The law under which the rules have been notified is the Prevention of Cruelty to Animals Act, 1960, is a Central law and falls squarely within the Concurrent List entry of ‘prevention of cruelty to animals’ [Entry 17, List III]. The argument breaching federalism is clearly fallacious as List II of Schedule VII reveals that no entry can be connected with prohibition of animal slaughter so as to vest exclusive power in the State legislature or executive. For instance, Entry 15 of the State List provides “preservation, protection and improvement of stock and prevention of animal disease; veterinary training and practice”, but that is neither the purpose of the Act nor of the rules – the purpose being to prevent cruelty to animals, and not to improve animal stock or prevent animal disease. Similarly, Entry 28 of State List relating to “markets and fairs” cannot also be marshaled since the pith and substance of the 2017 Rules is to prevent cruelty to animals, and regulation of animal markets is incidental and consequential.

It is thus difficult to say that the 2017 Rules do not meet constitutional muster. The hue and cry on the validity of these rules is on account of the conflation of desirability and legality. Rule of law requires that the legal examination of these rules, albeit challenging, insulate itself from the din of propriety and desirability surrounding these rules.